Good News for Future Players, Bad News for Past and Current Players Left to Seek Compensation on an Individual Basis

On July 29, 2014, the NCAA and representatives of college athletes announced an agreement to settle a concussion class action lawsuit that came on the heels of a similar lawsuit against the NFL.  The settlement will need to be approved by the Court, a process that could take several months. It is anticipated that several former athletes experiencing the long-term effects of concussions suffered in college sports will object to the settlement, since it does not provide any direct compensation – unlike the proposed settlement in the NFL case. Players with concussion claims are left to pursue those claims on an individual basis.

This settlement is good news in other ways. First and foremost, it reflects the growing recognition that mild traumatic brain injuries – concussions – can potentially have long term effects. This is expressly acknowledged by medical experts who created the model for the NCAA settlement. The settlement also calls for the NCAA to implement research based concussion management policies and return-to-play guidelines. Subject to enforcement limitations, this should bring more consistency to concussion management among NCAA member schools, hopefully reducing the long-term consequences to athletes. Some of the key agreed upon provisions are as follows:

• Preseason baseline testing for every athlete for each season in which he or she competes
• Prohibition from return to play the same day an athlete is diagnosed with a concussion (a 2010 survey of athletic trainers found that nearly half of all athletes with concussions returned to play the same day – dramatically increasing the risk of long-term harm)
• Requirement that medical personnel be present for games and available for practices for all contact sports, defined as football, lacrosse, wrestling, ice hockey, field hockey, soccer and basketball. Those personnel must be trained in the diagnosis, treatment and management of concussions
• Implementation of concussion tracking, in which schools will report concussions and their resolution
• Requirement that schools provide NCAA-approved training to athletes, coaches and athletic trainers before each season
• Education for faculty on the academic accommodations needed for students with concussions

The concussion class action lawsuit settlement also creates a $70 million dollar fund to provide medical monitoring for all current and former NCAA athletes in any sport and $5 million for research. To qualify for neurological testing, former athletes will have to complete a questionnaire designed by a team of neurologists and concussion experts. Athletes found to have long-term concussion related problems, such as post-concussion syndrome (PCS) or Chronic Traumatic Encephalopathy (CTE), will have to seek treatment on their own, by using their medical insurance or filing a damages claim – since the settlement does not provide for any direct compensation beyond the cost of medical monitoring. Hopefully the procedures and guidelines implemented through the NCAA settlement will influence other sporting organizations where concussions frequently occur, especially youth sports.

Post-Script: NCAA/DOD Concussion Study

The announcement of the NCAA concussion settlement comes on the heels of an earlier announcement, in May, 2014, that the NCAA and the U.S. Department of Defense have teamed to embark on an landmark $30 million dollar initiative to study concussions. Approximately 37,000 male and female NCAA athletes will be enrolled and followed over a three-year study period. Participants will receive a comprehensive preseason evaluation and will be monitored in the event of an injury. The investigation will be the largest ever on this issue and should offer critical insight into the risks, treatment and management of concussion. The study is being led by Indiana University Department of Psychiatry chair Tom McAllister – who until recently was at Dartmouth Medical School. Tom has spoken at past brain injury law seminars organized by Downs Rachlin Martin for the benefit of the Brain Injury Association of Vermont.